Fisher v. Taylor Motor Co.
| Decision Date | 25 February 1959 |
| Docket Number | No. 90,90 |
| Court | North Carolina Supreme Court |
| Parties | Aifred Jefferson FISHER, by Israel Fisher, his father and Next Friend, v. TAYLOR MOTOR COMPANY, Inc. |
Robert G. Bowers, Bayboro, Norris C. Reed, Jr., New Bern, for plaintiff-appellant.
R. E. Whitehurst, New Bern, for defendant-appellant.
The relative rights of plaintiff and of defendant, in such cases, are well defined in principles of law announced by and prevailing in this Court. See Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177; Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261; McCormick v. Crotts, 198 N.C. 664, 153 S.E. 152; Coker v. Virginia-Carolina Joint-Stock Land Bank, 208 N.C. 41, 178 S.E. 863; Barger v. M. & J. Finance Corp., 221 N.C. 64, 18 S.E.2d 826, and cases therein cited.
As to what the rights of the parties are when an infant elects to disaffirm a contract relative to the sale or purchase of personal property, other than as authorized by statute or for necessaries, this Court in the Collins case, supra, in opinion by Stacy, C. J., declared, in pertinent part: '1. An infant may avoid such a contract either during his minority or upon arrival at full age * * *
'2. Upon such avoidance, the infant may recover the consideration paid by him, either in money or property, with the limitation that he must restore whatever part of that which came to him under the contract he still has, or account for so much of its value as may have been invested in other property which he has in hand or owns and controls * * *
'3. But the infant is not required to account for the use or depreciation of the property while in his possession, or for its loss, if squandered or destroyed, for this is the very improvidence against which the law seeks to protect him * * *
In the light of these principles, applied to facts of case in hand, the plaintiff at the time an infant, was entitled, during his minority, to disaffirm the contract made by him with defendant for the purchase of the automobile in question. And upon such avoidance he was entitled to recover the consideration paid by him, either in money or property, with the limitation that he restore whatever part he still has of the automobile which came to him under the contract.
And the jury, upon the pleadings, supported by evidence tending to show controversy as to the fact, having found that only $600 of the money which was paid for the automobile belonged to plaintiff, and the parties having by the answer to the ninth issue stipulated...
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